Commonwealth Numbered Acts

SEX DISCRIMINATION AMENDMENT ACT 1991 No. 71, 1991 - SECT 9

9. Section 41 of the Principal Act is repealed and the following sections are
substituted: Insurance

"41. (1) Nothing in Division 1 or 2 makes discrimination by one person (in
this subsection called the `insurer') against another person (in this
subsection called the `client') unlawful if:

   (a)  the discrimination is on the ground of the client's sex; and

   (b)  the discrimination is in the terms on which an insurance policy is
        offered to, or may be obtained by, the client; and

   (c)  the discrimination is based on actuarial or statistical data from a
        source on which it is reasonable for the insurer to rely; and

   (d)  the discrimination is reasonable having regard to those data and any
        other relevant factors.

"(2) In this section: `insurance policy' includes an annuity, a life assurance
policy, an accident insurance policy and an illness insurance policy. New
superannuation fund conditions

"41A. (1) Nothing in Division 1 or 2 makes discrimination in relation to a
superannuation fund by one person (in this subsection called the
`discriminator') against another person (in this subsection called the
`aggrieved person') unlawful if:

   (a)  the discrimination is on the ground of the aggrieved person's sex or
        marital status; and

   (b)  the discrimination arises only because of one or more of the
        following:

   (i)  the superannuation fund conditions include a provision that:

                (A)  is based on actuarial or statistical data from a source
                     on which it is reasonable for the discriminator to rely;
                     and

                (B)  is reasonable having regard to those data and any other
                     relevant factors;

   (ii) in the case of a member who has no spouse (whether legal or de facto)
        or has no child - the superannuation fund conditions:

                (A)  do not provide for superannuation benefits in the event
                     of the member's death; or

                (B)  provide for less generous superannuation benefits in the
                     event of the member's death; or

                (C)  do not provide for superannuation benefits to someone
                     other than the member in the event of the member's
                     physical or mental incapacity; or

                (D)  provide for less generous superannuation benefits to
                     someone other than the member in the event of the
                     member's physical or mental incapacity;

   (iii) the superannuation fund conditions include a provision that relates
        to:

                (A)  the vesting in members or other persons of benefits
                     arising directly or indirectly from amounts contributed
                     to the fund; or

                (B)  the preservation of benefits arising directly or
                     indirectly from amounts contributed to the fund; or

                (C)  the portability of benefits arising directly or
                     indirectly from amounts contributed to another
                     superannuation fund; if the inclusion of that provision
                     results in only indirect discrimination against the
                     aggrieved person on the ground of that person's sex or
                     marital status;

   (iv) the superannuation fund conditions include a provision that confers
        particular benefits, or more generous benefits, only on a person to
        whom subsection 41B (3) or (4) applies.

"(2) For the purposes of this section, discrimination against a person on the
ground of the person's sex or marital status is taken to be indirect if
paragraph 5 (1) (b) or (c), subsection 5 (2), paragraph 6 (1) (b) or (c) or
subsection 6 (2) applies to the discrimination.

"(3) This section does not apply to a person in respect of a superannuation
fund if subsection 41B (3) or (4) applies to that person.

"(4) In this section: `member', in relation to a superannuation fund, includes
a person who has been a member of the fund at any time. Existing
superannuation fund conditions

"41B. (1) This section applies to a person (in this section called the
`member') if:

   (a)  the person was a member of a superannuation fund immediately before
        the commencement of this section; and

   (b)  unless the Commission has, under section 44, granted an exemption from
        the operation of this paragraph - before the commencement of this
        section, the person:

   (i)  had been given an option to obtain non-discriminatory benefits; and

   (ii) had not exercised the option in accordance with subsection (5).

"(2) This section applies to a person (in this section also called the
`member') if:

   (a)  at any time before the commencement of this section, the person became
        a member of a superannuation fund; and

   (b)  at a later time before that commencement, the person ceased to be a
        member of the fund.

"(3) Nothing in Division 1 or 2 makes discrimination against the member
unlawful if the discrimination:

   (a)  is on the ground of the member's sex or marital status; and

   (b)  is in the superannuation fund conditions.

"(4) Nothing in Division 1 or 2 makes discrimination against a person unlawful
if:

   (a)  the person derives, or would, apart from the discrimination, derive,
        benefits because the member is or was a member of the superannuation
        fund; and

   (b)  the discrimination:

   (i)  is on the ground of the sex or marital status of the member or the
        person; and

   (ii) is in the superannuation fund conditions.

"(5) If the administrators of the fund required the member to exercise the
option referred to in subsection (1) before the end of a particular period,
subsection (1) does not apply unless that period was at least 2 months long
and ended before the commencement of this section.

"(6) For the purposes of this section, the member is taken to obtain
non-discriminatory benefits where, if section 41A applied to the member in
respect of the fund, the superannuation fund conditions that relate to the
benefits would not give rise to discrimination that is unlawful under Division
1 or 2.".